The US Senate has already voted to overturn regulations that required telecom companies to ask permission before tracking users’ behavior; the House is expected to follow.

By Conor Dougherty
New York Times
March 27, 2017

NEW YORK — Now that Republicans are in charge, the federal government is poised to roll back regulations limiting access to consumers’ online data. States have other ideas.

As on climate change, immigration, and a host of other issues, some state legislatures may prove to be a counterweight to Washington by enacting new regulations to increase consumers’ privacy rights.

Illinois legislators are considering a “right to know” bill that would let consumers find out what information about them is collected by companies like Google and Facebook, and what kinds of businesses they share it with. Such a right, which European consumers already have, has been a longtime goal of privacy advocates.

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Two other proposals face a crucial Illinois House committee vote this week. One would regulate when consumers’ locations can be tracked by smartphone applications, and another would limit the use of microphones in Internet-connected devices like mobile phones, smart TVs, and personal assistants like Amazon’s Echo.

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Should they be passed into law, these rules could end up guiding the rights of consumers far beyond Illinois — because they would provide a model for other states, and because it would be difficult for technology companies with hundreds of millions of users to create a patchwork of state- and country-specific features to localize their effects.

Congress is pushing to overturn regulations imposed by the Federal Communications Commission under the Obama administration that limit the collection of data by broadband providers like AT&T and Comcast. The Senate approved the rollback last week, and the House is expected to follow this week.

Congressional Republicans argue the rules would add an unneeded and confusing layer of regulation and fail to distinguish between broadband providers and content companies like Facebook and Google. They also say, more broadly, that such regulation is onerous and stifles innovation.

Illinois is not the only place where state legislators are asserting themselves in the opposite direction.

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California and Connecticut, for example, recently updated laws that restrict government access to online communications like e-mail, and New Mexico could follow soon. Last year, Nebraska and West Virginia passed laws that limit how companies can monitor employees’ social media accounts, while legislators in Hawaii, Missouri, and elsewhere are pushing similar bills for employees, as well as for students and tenants.

“More and more, states have taken the position that if Congress is not willing or able to enact strong privacy laws, their legislatures will no longer sit on their hands,” said Chad Marlow, a lawyer at the American Civil Liberties Union.

Online privacy is the rare issue that draws together legislators from the left and the far right. At the state level, anyway, some of the progress has come from a marriage between progressive Democrats and libertarian-minded Republicans, who see privacy as a bedrock principle, Mr. Marlow said.

States have often been a kind of regulatory laboratory. Be it tax cuts, emission regulations, gay rights, or gun laws, advocates on both the left and the right have long worked at the state level to push agendas that Washington is too busy or hostile to handle.

In the case of online privacy, consumer groups and civil liberties advocates had a friendly ear in many quarters of the Obama administration. Now they face a White House and a Congress looking to roll back regulations, not create them.

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But federal blockage can create local opportunities.

“What you’re seeing is this growing recognition of the intrusiveness of these technologies, and some efforts — not to regulate them out of existence, but to regulate them in ways that allow people who care about this to preserve their own privacy,” said David Vladeck, a professor at Georgetown Law School, and the former director of the Federal Trade Commission’s consumer protection bureau. “So what’s going to happen is California is going to supplant Congress, and it’s going to be augmented by states like Illinois, Minnesota, and even Texas in efforts to protect consumer privacy.”

In Illinois, the “right to know” legislation recently cleared the Senate Judiciary Committee, paving the way for a full vote in the next few weeks. Technology companies and their trade organizations are lobbying fiercely against it.

“I think I created 30 jobs when I filed this bill,” said Michael Hastings, a Democratic state senator who sponsored the measure. He said lobbyists representing companies including Microsoft, Apple, Lyft, and Amazon had visited his office to talk about amending the bill. Several technology trade groups, including the Internet Association and NetChoice, have pushed publicly against the legislation.

Carl Szabo, senior policy counsel at NetChoice, said the law could add a burden of compliance costs and legal fees on essentially any company with a website that collects information, even routine things like creating e-mail lists or giving online support to customers.